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court order Archives | Eviction Lawyers South Africa

Court clears city on informal settlement evictions amid lockdown

By | Eviction news, Eviction orders, Homeless

By Karen Singh

Durban – eThekwini Municipality welcomed the decision by the Durban High Court to dismiss Abahlali BaseMjondolo’s application to stop evictions in informal settlements during the Covid-19 lockdown.

Durban eviction lawyers

Members and supporters of Abahlali baseMjondolo movement SA Picture: Motshwari Mofokeng/African News Agency(ANA)

Evictions have been ongoing at the Ekuphumeleni settlement in Mariannhill and the Azania settlement in Cato Manor over the last few weeks.

This is despite calls by the shack dwellers movement for the city to place a moratorium on evictions during the 21-day lockdown.

The municipality said they were pleased with the judgment, saying the application was full of disinformation which had sought to tarnish the city’s image.

Municipal spokesperson Msawakhe Mayisela said the Metro Police had, on numerous occasions, urged Abahlali to refrain from encouraging and condoning land invasions. He said land invasions were rife in the city, and they were a hindrance to much-needed service delivery.

Mayor Mxolisi Kaunda said he was happy the municipality had been vindicated by the court.

However, he said it was unfortunate that while the country was battling the spread of Covid-19, some groupings were trying to capitalise on the situation.

Kaunda urged those involved to respect the laws of the country.

“As this sphere of government, we will unwaveringly clamp down on any unlawful conduct, including land invasion,” he said.

Kaunda said resources had been mobilised to provide shelter for over 4000 homeless people across the city.

He said the city had ensured that they met the needs of all residents living in informal settlements, hostels and transit camps to protect them against contracting the virus.

“Why would we then demolish shacks that are occupied by the poorest of the poor? We still maintain that shacks that were demolished recently, were unoccupied, some of which were partially built, and we acted within the ambit of the law,” said Kaunda.

He said against all odds, the city would eventually restore the dignity of all residents in informal settlements whether affiliated to Abahlali or not.

“Residents are called upon to report to the authorities without fail, any signs of land invasion, where they rear their ugly heads,” said Mayisela.

Abahlali leader S’bu Zikode said they were disappointed by the outcome of the application, and were worried about what would happen as the lockdown continues.

“People are really scared. They don’t know what will happen tonight, or tomorrow, or the next day. We all fear that there will be more violence,” said Zikode.

He said the situation they suddenly found themselves in was very uncertain, as it was unusual not to win an application for an interdict against evictions.

Zikode said the judge was not convinced that the shacks were occupied despite photographs showing beds, mattresses and other furniture scattered between destroyed shacks.

“We cannot accept that people can be subjected to state violence or made homeless under any circumstances, but state violence and evictions became particularly urgent during this time of a worldwide health crisis in which impoverished people are most at risk,” said Zikode.

Zikode said Abahlali would focus all their energy on finding ways to keep organising in the face of violence from a “gangster” municipality.

Source: IOL (emphasis by SD Law*)

* SD Law is a law firm of specialised Durban eviction attorneys. Contact us at sdippenaar@sdlaw.co.za for help with Durban evictions.

Further reading:

Methodist Church preparing court order to remove refugees amid health, safety concerns

By | Eviction news

 A general view of refugees at the Central Methodist Church in Greenmarket Square.

A general view of refugees at the Central Methodist Church in Greenmarket Square. (Photo by Gallo Images/ Brenton Geach)

The Methodist Church of Southern Africa is in the process of bringing an eviction order against hundreds of refugees, who have been living in its Central Methodist Mission in Cape Town since last year, on the grounds of health and safety.”The grounds are what we’ve been saying all along – it’s been a health and safety risk from the beginning, which I mentioned when people were already there,” said Reverend Alan Storey.He added the safe space was no longer a safe space due to the risks, and the church would be defeating its original offer and intention – of safety – to let the group stay.Storey said the risk of Covid-19 had brought an additional sense of urgency, but they were not doing it just to clear out the church.Leadership dispute

He added there were children who have not been outside the church on Greenmarket Square since December 29, when a leadership dispute split the group in two – with one inside and another outside the church.

A note has also been put up outside the church recently by the group to ask tourists not to enter as they have usually done as Covid-19 measures are in place.

On Sunday, President Cyril Ramaphosa announced the declaration of a national state of disaster, and measures include limiting public gatherings to 100 people.

Religious institutions have announced the postponement of planned mass gatherings, and changed the way prayers are offered.

One of the leaders of the “inside” group at the Central Methodist Mission, JP Balous, appeared in the Cape Town Magistrate’s Court on Thursday and his case was postponed to 30 March, according to Western Cape National Prosecuting Authority spokesperson Eric Ntabazalila.

Balous was arrested for the alleged intimidation of SA Human Rights Commission commissioner Chris Nissen, and also on an unrelated assault case. During an appearance on 7 March pandemonium ensued during court proceedings.

Storey said he had spoken to the leader of the “inside” group, Aline Bukuru, to express his concern over the health and safety of the group, which includes at least 50 small children.

Fire hazard

“We forget that it [the cramped living conditions] is a complete fire hazard.”

The group originally camped out at the Waldorf Arcade where the UN High Commissioner for Refugee’s office is based to demand relocation to a third country, citing xenophobia.

They were removed by the police at the end of October last year who used water cannons and stun grenades. Thereafter, Storey offered them shelter as they wandered around Greenmarket Square in a daze with their luggage.

They have been told it is not possible as a group to be relocated, and must apply individually.

The “outside” group eventually decamped to a site opposite the Cape Town Central police station after being removed by law enforcement invoking by-laws against living and cooking on the pavements around the church.

Parliament’s Portfolio Committee on Home Affairs has asked for feedback on what the department and City of Cape Town intend doing about the situation.

Storey said lawyers were still working on the application, and he did not have a court date yet.

In a church notice, also announcing there would be no services due to Covid-19, he wrote: “In closing, I have a great concern about the refugees in the CMM sanctuary…

“… They are attempting to practice frequent hand washing, etc. But the truth is the conditions inside the sanctuary are ripe for a virus of any sort to spread, let alone the highly contagious coronavirus. As a result, our legal processes are addressing this matter with increased urgency.”

Source: News24 (emphasis by SD Law*)

* SD Law is a Cape Town law firm of specialist eviction lawyers. Our eviction attorneys also help landlords and tenants in Johannesburg and Durban with the eviction process. Contact us today for legal help with evicting a tenant, or to defend a tenant from an illegal eviction.

Further reading:

Police and developers blame each other for unlawful eviction

By | Eviction news, Homeless

Land occupiers in Mayfield intend to bring contempt of court action

unlawful eviction. Eviction lawyers

About 50 people who occupied vacant land in Mayfield, East of Johannesburg, were left homeless for the third time in two months after being evicted by metro police last week.

All three evictions were done without court orders and despite ongoing litigation between the occupiers and non-profit organisation Mina Nawe Housing Developers, which owns the land.

The first eviction was conducted by SAPS and the Ekurhuleni Municipality Police Department (EMPD) on 6 May, about a week after the land occupation started. The second eviction came three weeks later (28 June). The most recent was on 2 July.

On 25 June, Judge Fiona Dippenaar in the South Gauteng High Court ruled the first eviction unlawful as there was no valid court order. But this did not stop EMPD, SAPS and Mina Nawe from continuing evictions.

One of the occupiers, Khanyisile Mashele, said, “This has been very stressful on us … The court has not assisted us in any way because it has not stopped the EMPD from evicting us … It was just a waste of time and money.”

Mashele said some of the evictees were now living in a church hall nearby as they had nowhere else to go and most of them were struggling to get enough money to buy shack materials to rebuild.

Advocate Livingstone Nkuna, representing the occupiers in court on 25 June, argued that the eviction had been illegal. He said Mina Nawe should have used the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) to evict the occupiers.

PIE requires a court to consider whether the occupiers include vulnerable people and whether they will be left homeless, in which case the state must provide alternative accommodation.

Nkuna said court papers were never served on the occupiers so they were unaware of the action against them.

Judge Dippenaar said Mina Nawe had approached the court to get an interdict against the occupiers. She had granted an interim order to have the occupiers evicted because Mina Nawe appeared unopposed, but she had instructed Mina Nawe not to use that court order until it had filed supplementary papers.

Mina Nawe filed the papers on 9 May, but the eviction happened three days prior.

“How on earth did that happen?” Judge Dippenaar asked Advocate Msingathi Mlisana, representing Mina Nawe.

Mlisana denied that Mina Nawe had used her draft order to evict the occupiers. “[Mina Nawe] did not give out any instruction to carry out an eviction … It had no role in what the police did and it is up to [the police] to say why they [evicted].”

Judge Dippenaar said she was not convinced that Mina Nawe followed procedure. She ordered the eviction unlawful because there was no finalised court order at the time it was executed, and she set aside the order she had made on 10 May.

Sibusiso Nkomo, one of the directors of Mina Nawe, told GroundUp that the company now intended to evict the occupiers using the PIE act.

After the order was set aside, the occupiers moved back onto the land on 25 June. Three days later, EMPD and SAPS returned to evict the occupiers again without a court order.

The occupiers went back to court after filing an urgent application to stop the evictions.

Judge Ramarumo Monama, presiding, said Nkuna should have brought the matter as one of contempt of court rather than an urgent application, because “the order that you want me to make is already there” (Judge Dippenaar’s ruling on 25 June).

He said the occupiers had a right to be on the land until the owners obtained a court order. Anyone who evicted them was therefore in contempt of court.

Nkuna said metro police had interpreted the setting aside of the order differently – that the occupiers needed an order that explicitly said they had a right to be on the property.

Judge Monama dismissed the application, saying the court could not rephrase an order that effectively existed.

However, Advocate Emmanuel Sithole, representing EMPD, said metro police were misled by Mina Nawe, who gave it the order from 5 May (which was set aside on 25 June).

“When EMPD [evicts people], we are not doing it on our behalf. We are doing it on instruction from the court and on behalf of Mina Nawe … [The occupiers] can nail [Mina Nawe] all they want but it cannot be directed towards EMPD because we are just the messenger,” Sithole told GroundUp.

He said EMPD had been unaware that the matter was in court prior to the eviction.

“We have been made a party here, so now we know about this and we won’t be involved from here on out,” he told GroundUp on 1 July. But the next day, EMPD was on site evicting the occupiers for the third time.

Mashele said the occupiers will proceed with a contempt of court application.

Disputed land

The occupation started on 27 April when about 100 people from surrounding areas started demarcating stands and building structures on the vacant land. Some were unemployed and could no longer afford to rent. Others wanted to build their own homes.

Leader of the occupation, Steven Xulu, said some occupiers had been living on the land for a week, while others, including himself, were busy building when EMPD and SAPS evicted them on 6 May.

“The first thing I did was approach EMPD and ask them to show me a court order, but they couldn’t show it to us,” said Xulu.

He said the police started burning materials. The community retaliated by protesting in the street. To disperse the crowd police fired rubber bullets, said Xulu.

Xulu and ten other people were arrested for trespassing and public violence. Nine were released on R500 bail, but two remained in custody due to complications with their IDs.

Maria Nkosi had spent one night in her shack. She was cleaning when she heard “screaming and loud noises”. “I went to see what was happening and that’s when I saw the police demolishing and burning structures,” she said. “I left with my handbag, ID and some pots … They also took my materials so I don’t know how I am going to rebuild now.”

Victor Matsomane was erecting his shack at the time of the eviction. He and some of the other occupiers are the grandchildren of former farm workers who used to work the surrounding land before it was developed. They say the land was donated to them and the community when the owner relocated in 1991.

“We have suffered for too long. This land belongs to the community so why shouldn’t we live here?” asked Matsomane.

But Mina Nawe’s Nkomo said the former farm workers had been misled. He said the 16,000 hectares of land was bought by Mina Nawe for R7.2 million in 1996 and the occupied land was intended for a new township with 1,700 residential stands.

“When we started Mina Nawe, our aim was to build affordable housing for the community … so we hope that the government will buy about 30% of residential stands for RDP and low cost housing,” he said.

Nkomo could not provide a timeframe for the development, but the aim was to get the sewers and water running by early 2020. He said he was happy that the occupiers took the matter to court because it would show them that the land did belong to Mina Nawe. He also said he was thankful for the support from EMPD in assisting him with evictions.

“I don’t understand how [the occupiers] think they can have a right to be on my dwelling … Let’s say they do have the right, who is going to supply them with water and sanitation? How do I get water connected for my enemy?” asked Nkomo.“You would think talking to them would make them understand but they have just escalated this issue … My biggest mistake was making myself accessible … I have been too lenient on them.”

Source: GroundUp (emphasis by SDLAW*)

*SDLAW or Simon Dippenaar & Associates, Inc., is a law firm of specialised eviction lawyers operating in Cape Town, Johannesburg, and Durban. Contact us at sdippenaar@sdlaw.co.za or +27 (0) 86 099 5146.

Further reading:

SDLaw acts for successful Heathfield eviction

Court declares shack eviction unlawful